top of page
Search

The Future of Free Speech in India’s Digital Age

Open your phone, post a critique of a policy, and in seconds the message travels nationwide. But just as quickly, it can be flagged, throttled, or blocked, sometimes by opaque platform rules, sometimes by a government order you will never see. India’s internet has supercharged democratic conversation and also intensified the state–platform–citizen tug of war over speech. The core question is simple but urgent: how can India protect the constitutional guarantee of free expression in a digital ecosystem dominated by executive blocking powers, algorithmic curation, and private content moderation? This is not an abstract debate. Speech online shapes elections, protest, journalism, and everyday civic life.


India is one of the world’s largest online publics, and the internet is now integral to news distribution and political debate. The Supreme Court acknowledged the centrality of online access in Anuradha Bhasin v. Union of India (2020), holding that internet access is essential to the freedom of speech and that restrictions must meet tests of necessity and proportionality; indefinite shutdowns are impermissible. At the same time, India has seen aggressive content controls under executive orders to platforms and recurring network suspensions, producing a climate in which journalists and users self-censor. International indicators mirror this strain. Reporters Without Borders’ 2025 index places India at 151/180, up from 159 in 2024 but still reflecting systemic pressure on journalism.


The constitutional baseline for online speech was set by Shreya Singhal v. Union of India (2015).  Striking down Section 66A of the IT Act as vague and overbroad, the Court reaffirmed that only speech that crosses from discussion/advocacy into incitement can be criminalized, aligning online speech with Article 19(1)(a) protections and Article 19(2) limits.


The judgment has two lasting lessons: 

(i) vague standards chill speech online and 

(ii) due process and transparency must accompany takedowns. Subsequent policy, however, has repeatedly tested those lessons.


India’s regulatory backbone for platforms is the Information Technology Act, 2000 and its delegated rules. Section 69A permits the government to order blocking of information in specified interests of sovereignty, security and public order. Shreya Singhal upheld Section 69A narrowly because it embedded procedural safeguards, but practice has evolved toward broader, account-level blocking and sealed reasons. The Karnataka High Court’s 2023 decision dismissing Twitter’s challenge to multiple blocking orders highlights this trend. The Court accepted whole-account blocks and found no legal requirement that reasons be disclosed to the public, though it said disclosure is preferable.


The IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 expanded platform due-diligence duties and takedown timelines. A 2023 amendment sought to create a government Fact-Check Unit (FCU) to label “fake/false/misleading” content about government business, with compliance consequences for platforms. In September 2024, the Bombay High Court struck down the FCU amendment as unconstitutional, warning that such an executive fact-checker risks becoming an arbiter of truth.


Even absent formal state orders, platforms make thousands of moderation decisions daily using policies and algorithms that remain mostly opaque. That opacity can mute speech at scale, and the impacts are uneven where regional languages, smaller publishers, and marginalized voices often have less leverage to appeal. India’s experience shows a three-layered governance model i.e., constitutional law and statutes, executive directions to intermediaries, and platform rules. When all three layers trend toward caution, the cumulative effect is a chilling spiral where users self-silence to avoid account loss, legal trouble, or algorithmic demotion.


The EU’s Digital Services Act (DSA) is not a speech code. Rather it imposes process obligations like risk assessments, transparency reports, notice-and-action procedures, audits, and researcher access all the while affirming free expression. It targets illegal content and systemic risks rather than micromanaging lawful speech. These due-process-style tools can inform Indian reforms without importing Europe’s entire model.


Parliament should place Section 69A practice on a clearer statutory footing with public-facing, reasoned orders; maximum durations; mandatory post-hoc publication; and rapid judicial review. Think “show your work” by default, with narrow, time-bound secrecy for sensitive cases. The aim is not to forbid blocking, but to constitutionalize it procedurally.


There should be replacement of executive truth-setting with independent process. Instead of government fact-check units, legislate a co-regulatory model: 

(i) high-due-process notice-and-appeal standards for platforms

(ii) an independent digital speech regulator or strengthened tribunal to review takedowns and 

(iii) safe-harbour incentives tied to transparency and user rights, not viewpoint outcomes.


The Bombay HC’s FCU ruling shows the constitutional guardrails.

Mandating platform due process is necessary. Borrow DSA-style obligations fit to India i.e., plain-language notices, reason codes for moderation, data on governmental requests, appeal mechanisms with human review, and audited transparency reports including in major Indian languages. These process rules protect speech without predetermining content. 

It is necessary to narrow and measure network shutdowns. Statutorily requires strict necessity, least-restrictive means, time limits, and prompt publication of orders, with immediate judicial oversight operationalizing Anuradha Bhasin. Periodic aggregation of data on shutdown frequency, scope, and impact should be mandatory. It is also important to protect journalism and civic speech. Implement fast-track quash/recall procedures for criminal process against speech acts, coupled with penalties for mala fide complaints. Create a statutory presumption favouring newsworthy speech absent imminent harm evidence. RSF’s data make clear that legal harassment is a free-speech issue, not only a press-freedom niche. India should invest in demand-side solutions which includes scaling media-literacy programs, independent fact-checking collaborations, and civic education. Durable speech ecosystems are not built by takedowns alone but they require resilient, informed audiences.


India’s digital future will not be decided by a single case or rule change. It will be built incrementally by insisting that every restriction on online speech be lawful, necessary, proportionate, and reviewable, and that every platform decision be explainable and appealable. Shreya Singhal gave India a vocabulary against vagueness and overbreadth while Anuradha Bhasin tied connectivity to constitutional freedoms whereas the Bombay High Court reminded us that governments cannot be arbiters of truth. The next step is institutional with transparency, due process, and independence into both state action and platform governance. If India gets the process right, it can protect powerful and plural speech which is precisely the kind the Constitution makers intended to defend.


References:

1. Shreya Singhal v. Union of India, (2015) 5 SCC 1https://indiankanoon.org/doc/110813550/  

2. Anuradha Bhasin v. Union of India, (2020) 3 SCC 637 https://indiankanoon.org/doc/75363923/ 

4. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 https://www.meity.gov.in/content/intermediary-guidelines-and-digital-media-ethics-code-rules-2021  

5. Bombay High Court Judgement on Fact-Check Unit (FCU), September 2024 (Summary report) https://www.barandbench.com/news/bombay-high-court-strikes-down-centre-fact-check-unit-it-rules 

7. Reporters Without Borders, World Press Freedom Index 2025 https://rsf.org/en/index 

8. Internet Freedom Foundation (IFF), Internet Shutdowns in India, Annual reports on frequency and scope of shutdowns.https://internetfreedom.in/internet-shutdowns/  

9. Supreme Court of India, Doctrine of Proportionality in Rights Restrictions (Justice K.S. Puttaswamy v. Union of India, 2017).https://indiankanoon.org/doc/91938676/ 

10. European Union Digital Services Act (DSA), Regulation 2022/2065 https://digital-strategy.ec.europa.eu/en/policies/digital-services-act  

11. Carnegie India, Governing Online Speech in India (Policy Brief, 2023) https://carnegieindia.org/2023/02/15/governing-online-speech-in-india-pub-89076  

12. UN Special Rapporteur on Freedom of Expression, Report on Internet Shutdowns and Digital Speech (2022), Global standards applicable to India. https://www.ohchr.org/en/documents/thematic-reports/a77266-report-special-rapporteur-promotion-and-protection-right-freedom  


This article is authored by Sreshta Ann John, Law Student from India and Trainee of Lets Learn Law Legal Research Training Programme. The views and opinions expressed in this piece are solely those of the author.


 
 
 

Comments

bottom of page